High Court of KeralaSingle JudgeThe original petition fails and is dismissed.
O.P.(C) No. 1679 of 2022
Case / Petition Number:O.P.(C) No. 1679 of 2022
Case Details & Bench
- Court
- High Court of Kerala
- Hon'ble Judges
- C.S. Dias
- Judgment Date
- 2022-09-01
- Court Decision / Holding
- The original petition fails and is dismissed.
- Final Disposition
- The original petition fails and is dismissed.
Parties to the Case
Appellants / Petitioners
- Cleetus
- Kochuthressia
- Traicy
Respondents
- Cicily
- Renny
- Paulose
- Elamma
- Elikkutty
- Rajappan
- E.V. Varghese
- Benny
- Babu
- Thressiamma Vincent
- Joy K.V
- Jaimon K.V
- Mary
- Sr. Anice CTC
- Xavier
- Paulose
- Anthony
- Elsy
- Jijo Antony
- Lija George
- Chinnakkutty
- Smitha
- Snitha
Legal Representation & Advocates
Counsels for Petitioners
- • Advocate Jose J. Mathaikal
Case Synopsis & Summary
Original Petition (O.P.(C) No. 1679 of 2022) challenges two interim orders (Ext. P7 and Ext. P8) passed on 1 August 2022 in O.S. No. 157 of 2009 of the Sub Court, Perumbavoor, which dismissed the petitioners’ requests to remit the Advocate Commissioner’s report and to remove the suit from the list. The petitioners, who are plaintiffs 4–6 in the suit, sought relief in order to ensure compliance with the principles laid down by this Court in Sabu v. Sasi (2022) and with the Kerala Survey and Boundaries Act, 1961. The essence of their argument was that the Commissioner’s and Surveyor’s reports must be consolidated to include essential survey details such as ladder, line, checkline, and offset measurements, forming a coherent survey map and plan. The court, after considering the pleadings and the legal position in Sabu, held that there is no illegality or perversity in Exts. P7 and P8 and that the decision elaborates the manner in which commission and survey reports should be filed under the governing statutes. Consequently, the original petition was dismissed, and no fresh relief to remit the report or re-open the suit was warranted.
Provisions of Law Cited
Constitution of India, Article 227Kerala Survey and Boundaries Act, 1961
Submissions & Arguments
Contentions of Appellants / Petitioners
The petitioners contended that Exts. P7 and P8 are erroneous and contrary to the law governing commission and survey reports as laid down in Sabu v. Sasi (2022) and the Kerala Survey and Boundaries Act, 1961. They urged remittance of the commission report to facilitate consolidation of the survey map with essential details such as ladder, line, checkline, and offset measurements, so as to produce a cohesive plan and to ensure compliance with the prescribed procedure before a long-pending possession suit is adjudicated. They relied on the principle in Sabu to argue that the court must ensure a comprehensive, consolidated survey record before proceeding further in the case.
Contentions of Respondents
Not expressly stated in the judgment. The court’s analysis and outcome reflect acceptance that there was no illegality or perversity in Exts. P7 and P8 and that the petition to remit the report was not warranted.
Cited Precedents (1)
| Case Name | Citation | Treatment | Explanation |
|---|---|---|---|
| Sabu v. Sasi | 2022 (2) KHC 435 | Positive | Cited by the court to articulate the required consolidation and filing of commission/survey reports; used as the doctrinal basis for rejecting the petitioner's challenge and for explaining the procedure under Kerala Survey and Boundaries Act. |
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Extracted Judgment Text
Exact text extracted from official judgment records.
# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR.JUSTICE C.S.DIAS**
**THURSDAY, THE 1[ST] DAY OF SEPTEMBER 2022 / 10 TH BHADRA, 1944 O.P.(C) NO.1679 OF 2022**
**AGAINST THE ORDER DATED 01.08.2022 IN I.A.NO.7/2022 & 8/2022 IN O.S.NO.157/2009 ON THE FILE OF THE SUB COURT, PERUMBAVOOR.**
**PETITIONERS/PETITIONERS IN IAs/PLAINTIFFS 4, 5 AND 6 IN O.S.:**
**1 CLEETUS, AGED 60 YEARS, S/O AUSEPH, KOYIKKARA HOUSE, THAMARACHAL KARA, KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT, PIN-683562.**
**2 KOCHUTHRESSIA, AGED 55 YEARS, W/O LATE JOSE, KOYIKKARA HOUSE, THAMARACHAL KARA, KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT, PIN-683562.**
**3 TRAICY, AGED 25 YEARS, D/O LATE JOSE, KOYIKKARA HOUSE, THAMARACHAL KARA, KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT, PIN-683562.**
**BY ADV JOSE J.MATHAIKAL**
**RESPONDENTS/RESPONDENTS IN Ias/DEFENDANTS 4 TO 26 IN THE O.S.:**
|**1**|**CICILY,**|
|---|---|
||**AGED 60 YEARS, W/O AUGUSTHY,**|
||**THEKKANATTU HOUSE,**|
||**THAMARACHAL KARA, KIZHAKKAMBALAM,**|
||**ERNAKULAM DISTRICT, PIN - 683562**|
**2 RENNY, AGED 35 YEARS, D/O AUGUSTHY, THEKKANATTU HOUSE, THAMARACHAL KARA, KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT, PIN – 683562.**
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## **O.P.(C) NO.1679 OF 2022**
|**3**|**PAULOSE,**|
|---|---|
||**AGED 70 YEARS, S/O ULAHANNAN,**|
||**THURUTHUMMEL HOUSE,**|
||**THAMARACHAL KARA, KIZHAKKAMBALAM VILLAGE,**|
||**ERNAKULAM DISTRICT, PIN – 683562.**|
- **4 ELAMMA, AGED 70 YEARS, W/O DEVASSIA THOMA, KACHAPPILLY HOUSE, THAMARACHALKARA, KIZHAKKAMBALAM, PIN-683562.**
|**5**|**ELIKKUTTY,**|
|---|---|
||**AGED 70 YEARS, W/O DEVASSIA ANTONY,**|
||**KACHAPPILLY HOUSE,**|
||**THAMARACHAL KARA, KIZHAKKAMBALAM,**|
||**ERNAKULAM DISTRICT, PIN – 683562.**|
**6 RAJAPPAN, AGED 60 YEARS, S/O NARAYANANA, PULICKAL HOUSE, THAMARACHAL KARA, KIZHAKKAMBALAM, ERNAKULAM DISTRICT, PIN - 683562 7 E.V VARGHESE, AGED 80 YEARS, ETHAKKAN HOUSE, THAMARACHAL KARA, KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT, PIN – 683562.**
|**7**|**E.V VARGHESE,**<br>**AGED 80 YEARS, ETHAKKAN HOUSE,**<br>**THAMARACHAL KARA, KIZHAKKAMBALAM VILLAGE,**<br>**ERNAKULAM DISTRICT, PIN – 683562.**|
|---|---|
|**8**|**BENNY,**|
||**AGED 50 YEARS, S/O MATHEW,**|
||**PALATHINKAL HOUSE,**|
||**THAMARACHAL KARA, KIZHAKKAMBALAM,**|
||**ERNAKULAM DISTRICT, PIN – 683562.**|
- **9 BABU, AGED 55 YEARS, S/O JAMES, KARAKUNNEL HOUSE, THAMARACHAL KARA, KIZHAKKAMBALAM VILLAGE, ERNKAULAM DISTRICT, PIN – 683562.**
- **10 THRESSIAMMA VINCENT, W/O LATE VINCENT, KACHAPPILLY HOUSE, THAMARACHALKARA, ERNAKULAM DISTRICT, PIN-683562.**
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## **O.P.(C) NO.1679 OF 2022**
|**11**|**JOY K.V,**|
|---|---|
||**AGED 50 YEARS,S/O LATE VINCENT,**|
||**KACHAPPILLY HOUSE,**|
||**THAMARACHAL KARA, KIZHAKKAMBALAM,**|
||**ERNAKULAM DISTRICT, PIN-683562.**|
|**12**|**JAIMON K.V.,**|
||**AGED 48 YEARS, S/O LATE VINCENT,**|
||**KACHAPPILLY HOUSE,**|
||**THAMARACHAL KARA, KIZHAKKAMBALAM VILLAGE,**|
||**ERNAKULAM DISTRICT, PIN – 683562.**|
|**13**|**MARY,**|
||**AGED 45 YEARS, D/O LATE VINCENT,**|
||**THOTTAKKARA HOUSE,**|
||**ANAPPARA P.O, ERNAKULAM DISTRICT, PIN – 683581.**|
|**14**|**SR.ANICE CTC,**|
||**AGED 45 YEARS, D/O LATE VINCENT,**|
||**CHRIST KING CONVENT, PONNURUNNI,**|
||**VYTTILLA P.O, ERNAKULAM DISTRICT, PIN-682019.**|
|**15**|**XAVIER,**|
||**S/O LATE JOSEPH, KOTTUNGAL HOUSE,**|
||**THAMARACHAL KARA, KIZHAKKAMBALAM,**|
||**ERNAKULAM DISTRICT, PIN – 683562.**|
|**16**|**PAULOSE,**|
||**AGED 62 YEARS, S/O LATE JOSEPH,**|
||**KOTTUNGAL HOUSE, THAMARACHAL KARA,**|
||**KIZHAKKAMBALAM, ERNAKULAM, PIN – 683562.**|
|**17**|**ANTONY,**|
||**AGED 54 YEARS, S/O LATE JOSEPH,**|
||**KOTTUNGAL HOUSE, THAMARACHAL KARA,**|
||**KIZHAKKAMBALAM, ERNAKULAM DISTRICT, PIN-683562.**|
|**18**|**ELSY,**|
||**AGED 66 YEARS, D/O LATE JOSEPH,**|
||**KOTTUNGAL HOUSE, THAMARACHAL KARA,**|
||**KIZHAKKAMBALAM, ERNAKULAM DISTRICT, PIN-683562.**|
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## **O.P.(C) NO.1679 OF 2022**
**19 JIJO ANTONY, AGED 51 YEARS, S/O LATE ANTONY, HAPPY HOMES-1, CEPZ P.O, KAKKANAD, ERNAKUALM DISTRICT, PIN-682037.**
**20 LIJA GEORGE, AGED 61 YEARS, D/O K.U KORA, KAVANAL HOUSE, KARIMKUNNAM P.O, THODUPUZHA, PIN – 685586.**
- **21 CHINNAKKUTTY, W/O LATE ISSAC, THURUTHUMMEL HOUSE, THAMARACHAL KARA, KIZHAKKAMBALAM, ERNAKULAM DISTRICT, PIN – 683562.**
- **22 SMITHA, D/O LATE ISSAC, THURUTHUMMEL HOUSE, THAMARACHAL KARA, KIZHAKKAMBALAM, ERNKAULAM DISTRICT, PIN – 683562.**
- **23 SNITHA,**
**D/O LATE ISSAC, THURUTHUMMEL HOUSE, THAMARACHAL, KIZHAKKAMBALAM, ERNKAULAM DISTRICT, PIN – 683562.**
**THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **O.P.(C) NO.1679 OF 2022**
**C.S. DIAS, J. -------------------------------------------------------O.P.(C) No.1679 of 2022 -------------------------------------------------------Dated this the 1[st] day of September, 2022**
## **JUDGMENT**
The original petition is filed to set aside the order in I.A.No.7 of 2022 (Ext.P7) and I.A.No.8 of 2022 (Ext.P8) in O.S. No.157 of 2009 of the Court of the Subordinate Judge, Perumbavoor.
2. The skeletal facts, relevant for the determination of the original petition are: the petitioners are the plaintiffs 4, 5 and 6 in the above suit filed against the respondents, who are the defendants 4 to 26 for a decree for recovery of possession. The plaintiffs 1 to 3 and the defendants 1 to 3 are no more. An Advocate Commissioner was appointed, who has filed Ext.P2 commission report. In view of the law laid down by this Court in **Sabu v. Sasi [2022 (2) KHC 435]** , wherein this Court has directed that the Commissioner and Surveyor have to prepare a consolidated sketch incorporating all the details pertaining to
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## **O.P.(C) NO.1679 OF 2022**
the property, including ladder, Gline, Checkline and offset measurements which are essential for the components of a survey map and plan, the petitioners filed Ext.P3 application and Ext.P4 application to remove the suit from the list. However, the court below by the impugned Exts.P7 and P8 orders, dismissed Ext.P3 and Ext.P4. Exts.P7 and P8 are erroneous and wrong. Hence the original petition.
3. Heard; Sri. Jose K. Matheikel, the learned counsel appearing for the petitioners.
4. The point is whether there is any error or illegality in Exts.P7 and P8.
5. The suit is instituted for recovery of possession on 02.11.2009. At the instance of the petitioners, an Advocate Commissioner has already filed Ext.P2 report. The suit is listed for trial after a long gap of 13 years. Admittedly, the 1[st] petitioner has filed his proof affidavit in lieu of his chief examiantion. Now, at this belated stage, the petitioners have felt the need to remit the commission report, in order to
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## **O.P.(C) NO.1679 OF 2022**
comply the law laid down in **Sabu** (supra).
6. On a consideration of the pleadings and materials on record and the law laid down in **Sabu** , I am of the definite view that this Court has only elaborated the manner in which a commission report and survey report have to be filed following the principles laid down in Kerala Survey and Boundaries Act, 1961. The decision does not give any cause of action to the petitioners to file a fresh application to remit the commission report. There is no illegality or perversity in Ext.P7 order warranting interference by this Court under Article 227 of the Constitution of India.
The original petition fails and is dismissed.
Sd/- **C.S. DIAS JUDGE**
bpr
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## **O.P.(C) NO.1679 OF 2022**
## **APPENDIX**
## **PETITIONERS' EXHIBITS**
|**EXHIBITP1**|**TRUE COPY OF THE PALINT ON OS NO 157 OF 2009**|
|---|---|
||**ON THE FILE OF SUB COURT PERUMBAVOOR**|
|**EXHIBITP2**|**TRUE COPY OF THE COMMISSION REPORT IN OS NO**|
||**157 OF 2009 ON THE FILE OF SUB COURT**|
||**PERUMBAVOOR**|
|**EXHIBITP3**|**TRUE COPY OF IA NO 7/2022 IN OS NO 157/2009**|
||**OF THE SUB COURT PERUMBAVOOR**|
|**EXHIBITP4**|**TRUE COPY OF IA NO 8/2022 IN OS NO 157 OF**|
||**2009 BEFORE SUB COURT, PERUMBAVOOR**|
|**EXHIBITP5**|**TRUE COPY OF JUDGMENT IN SABU V. SASI**|
||**REPORTED IN 2022 (2) KHC 435**|
|**EXHIBITP6**|**TRUE COPY OF INTERIM ORDER DATED 4/8/2022 IN**|
||**OP(C)NO 1437/2022 OF THE HONOURABLE HIGH**|
||**COURT OF KERALA**|
|**EXHIBITP7**|**TRUE COPY OF ORDER DATED 1/8/2022 IN IA NO 7**|
||**OF 2022 IN OS NO 157 OF 2009 OF SUB COURT,**|
||**PERUMBAVOOR**|
|**EXHIBITP8**|**TRUE COPY OF ORDER DATED 1/8/2022 IN IA NO 8**|
||**OF 2022 IN OS NO 157/2009 OF SUB COURT,**|
||**PERUMBAVOOR**|